Hip Replacement Surgery and Recovery Time Were Factors in Termination, Ontario Human Rights Tribunal Rules

by Dentons
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[author: Naomi Horrox]

Employers should proceed cautiously in terminating the employment of an employee that they know will be imminently undergoing a major medical procedure and requiring time off work. Even if the medical procedure and time off are not the primary reasons for the termination, they may be found to be factors in the termination.

Timothy Pritchard began employment with the Commissionaires Great Lakes (the “Commissionaires”) on March 10, 2008 as a Director of Professional Services.

Pritchard was diagnosed with severe arthritis. On May 6, 2010, he informed his employer that he would be having hip replacement surgery on June 16, 2012 and that he would require eight to twelve weeks off work to recover. Pritchard proposed that his time off be funded by 23 days of accumulated sick time, two weeks of accumulated vacation, and an advance on his annual vacation time.

On June 7, 2010, Pritchard was asked by a member of the Commissionaires’ executive team to review a copy of his offer of employment. When Pritchard asked if his employment was being terminated, he was advised that it was not, but that his role was being reviewed at the next executive meeting.

On June 9, 2010, the Commissionaires advised Pritchard that his employment was being terminated effective immediately. As the Chief Executive Officer was away at that time, Pritchard did not receive a termination letter until June 22, 2010. In accordance with the terms of Pritchard’s offer letter, the Commissionaires provided him with three months’ salary in lieu of notice. Pritchard was not, however, paid out any sick days as, according to the Commissionaires’ policy, sick days have “no monetary value” after the end of employment. Several months later, on September 28, 2010, the Commissionaires posted for a “Manager, Sale of Training” position, which was similar to Pritchard’s position.

Pritchard brought a human rights application claiming discrimination on the basis of disability in the termination of his employment.

At the hearing, Pritchard questioned the timing of his termination, asserting that his direct manager and everyone around him knew his surgery was coming. Witnesses for the Commissionaires testified that when business declined, the Commissionaires needed to reduce overhead in the London region, where Pritchard was employed. The Commissionaires admitted that they were aware of Pritchard’s hip replacement surgery and his need for time off, but denied that it was a factor in their decision to terminate his employment. Finally, the Commissionaires noted that the new position posted in September 2010 was for Toronto, not the London area.

Vice Chair Brian Eyofson of the Ontario Human Rights Tribunal held that Pritchard’s medical condition, severe arthritis requiring a hip replacement and absence from work for approximately 2.5 months, constituted a disability under the Human Rights Code. The Tribunal also found that Pritchard’s pending disability-related absence from work was a factor in the termination of his employment: the termination of Pritchard’s employment occurred with considerable haste, five business days before his scheduled hip replacement surgery. The Commissionaires were aware of the timing of Pritchard’s surgery and the time off he required. Moreover, while the Commissionaires paid Pritchard three months of salary upon termination in accordance with his offer letter, by terminating Pritchard’s employment when it did, the Commissionaires avoided paying him the over four weeks of accumulated sick days that he would have received had he remained employed.

As Pritchard reemployed following the Labour Day weekend, the Tribunal ordered the Commissionaires to pay Pritchard the difference between his salary at the Commissionaires and his new salary from the date upon which he reemployed until the date that this new employment ended in January 2011. The Tribunal also awarded Pritchard $10,000 for injury to dignity, feelings, and self-respect, citing the embarrassment Pritchard experienced when his employment was terminated, the stress of losing employment five days before hip replacement surgery, and the impact on his recovery from surgery of having to look for new employment.

Pritchard v. Commissionnaires Great Lakes et al., 2012 HRTO 1466 (CanLII).

 

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